K.Rajendran vs /
2024 Latest Caselaw 20353 Mad

Madras High Court

K.Rajendran vs / on 28 October, 2024

Author: G.Jayachandran

Bench: G.Jayachandran

                                                                                   Crl.O.P.No.26846 of 2024

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 28.10.2024

                                                         CORAM

                             THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN

                                              Crl.O.P.No.26846 of 2024
                                        & Crl.M.P.Nos.14901 & 14903 of 2024

                1. K.Rajendran,
                2. Madhubalan,
                3. Gunasekaran,
                4. Jaishankar,
                5. Lakshmanan,
                6. Parimala                           ... Petitioners/Accused 1 to 6
                                                           /versus/

                1. The State Represented by,
                The Sub Inspector of Police,
                Ethappur Police Station,
                Salem District.
                (Crime No.58 of 2024).                ... 1st Respondent/Complainant

                2. Sathya.                            ... 2nd Respondent/Defacto Complainant

                Prayer: Criminal Original Petition has been filed under Section 528 BNSS,
                pleased to call for records in C.C.No.236 of 2024 on the file of the Learned
                Judicial Magistrate No.I, Attur, Salem and quash the same.



                                  For Petitioners      : Mr.V.Krishnamoorthy.

                                  For R1               : Mr.S.Udaya Kumar.
                                                         Government Advocate (Crl.Side)
                                                       ORDER

https://www.mhc.tn.gov.in/judis

The petitioner herein is an accused in C.C.No.236 of 2024 investigated by the Sub Inspector, Ethappur Police Station, Salem in Crime No.58/2023.

2. The present petition is filed to quash the final report on the

ground that on the same transaction, the complaint against (i) K.Rajendran, (ii)

Madhubalan, (iii) Gunasekaran, (iv) Jaishankar, (v) Lakshmanan, (vi) Parimala

was registered in Crime No.58 of 2023.

3. The Learned Counsel appearing for the petitioner submits that

being case and case in counter, arising out of same transaction, the Investigating

Officer ought to have ascertain who is the aggressor and should have filed final

report only against the aggressor and should have dropped action against the

other party following Police Standing Officer 566. Whereas, in this case, both

the complaints were investigated and final report filed without reference to the

other complaint. Hence following the decision of the full bench of this Court in

T.Balaji and others vs. The State Rep. by, The Inspector of Police, New

Washermenpet Police Station, Chennai (Crl.O.P.No.4587 of 2023, dated

08.08.2024), the final report has to be quashed.

4. The Learned Government Advocate (Crl.Side) appearing for the https://www.mhc.tn.gov.in/judis

1st respondent submits that, accused in case and case in counter, both are found

to be an aggressors and therefore, two separate final report filed and pending

before the Judicial Magistrate No.I, Attur in C.C.No.236 of 2024 and

C.C.No.371 of 2024. The omission to refer about the counter case will not led

to quash of the case. However, by following the guidelines issued by this Court

in T.Balaji case cited supra, the Magistrate shall follow the procedure

prescribed in Ekambaram v. Sundaramurthy and State reported in 1988 LW

(Cri) 127 in case of this nature. The relevant portion of the full bench judgment

is extracted below:-

56. In Ekambaram v. Sundaramurthy and State, 1988 LW (Cri) 127, David Annoussamy, J had laid down the following procedure for trial of a case and case in counter:

“In some rare cases where he finds himself to be in such a predicament, what he should do is, to try those cases separately, but immediately one after the other. When the first case is over, he should not pronounce judgment till the trial of the other case is completed. He cannot legally use the evidence of one case in the other case if it is not on record in the other case. But, if any relevant evidence comes to his notice in one case, which may be used in the other, he has the power to bring it on record in the proper manner in the other case also. The Magistrate can, at any time of the proceeding till the https://www.mhc.tn.gov.in/judis

judgment is delivered, gather further evidence in the case. The Court has vast powers to this effect under Section 311 of the Code of Criminal Procedure and Section 165 of the Indian Evidence Act. In that way, one case will not be artificially isolated from the other and thus lead to injustice. The Court can come to the right conclusion in taking all the facts and circumstances of the transaction. The judgments should be pronounced in both the cases at the same time.” Guidelines:

(b) Post Cognizance and Trial in a case and case in counter:

i. If the Magistrate finds that the two final reports are rival versions of the same incident, but both parties are found to have engaged in acts of aggression etc., he may take cognizance of both final reports. In such cases, the Magistrate shall follow the procedure prescribed in Ekambaram v. Sundaramurthy and State, 1988 LW (Cri) 127, which we have extracted in paragraph 56, supra.

ii. If one case is exclusively triable by a Court of Session and the other case is triable by a Magistrate, the Magistrate shall commit both the case and counter case to the Court of Session for trial as prescribed by Section 362 BNSS 2023 (Section 323 Cr.P.C), who shall thereafter proceed in accordance with the directions contained in paragraph 56 supra.

https://www.mhc.tn.gov.in/judis

59. In the light of the above discussion, the following are our answers to the questions referred to us vide order dated 21.03.2024:

a. The police are required to mandatorily follow the procedure prescribed in PSO 566 while investigating a case and case in counter ie., rival versions of the same incident.

b. The consequences of non-compliance with PSO 566 would depend upon the stage at which such an objection is raised. It is the duty of the Magistrate to screen out final reports which are filed in inconsistent rival versions of the same incident ie., where one rival version is true the other must be necessarily false, by returning with a direction to follow PSO 566. Where the Magistrate inadvertently takes cognizance, the error may be set right by the High Court under Section 528 BNSS, 2023 if the same is raised at an early stage. If, however, the trial in such cases is allowed to go on and has reached an advanced stage, a plea of non-compliance with the PSO will not ipso facto vitiate trial unless and until a demonstrable case of prejudice or miscarriage is made out.

c. The police will take note of and scrupulously follow the guidelines set out in paragraph 58-A, supra.

d. Trial of a case and counter case shall be held https://www.mhc.tn.gov.in/judis

simultaneously before the same Court and the guidelines set out in paragraph 58-B, supra, shall be followed.

5. The Learned Counsel appearing for the petitioner submitted that

since the final report against the petitioner does not whisper about the counter

complaint, case has to be quashed. However, this Court finds that such an

argument is sustainable only when the Investigating Officer has totally

suppressed the counter complaint and not proceeded with the counter complaint

and screened the fact of counter complaint from the knowledge of the Court in

the final report. Whereas, when two final reports are filed for the same

transaction with the rival version, the procedure to be adopted been prescribed

by this Court long back by Justice David Annoussamy, in Ekambaram case

cited supra, relevant portion in paragraph No.56 is cited supra.

6. Therefore, in this case both final reports are pending in respect

of same transaction and apparently both are aggressors and had caused grievous

hurt to each other. The procedure to be adopted is what Justice David

Annoussamy has said in Ekambaram case cited supra.

7. Hence, this Criminal Original Petition is disposed of with a https://www.mhc.tn.gov.in/judis

direction to the Judicial Magistrate No.I, Attur, Salem to follow the procedure

laid in Ekambaram case cited supra referred in paragraph No.56 of Full Bench

judgment in respect of C.C.No.236 of 2024 and C.C.No.371 of 2024 and

proceed in accordance with law. Consequently, connected Miscellaneous

Petitions are closed.

8. The learned Counsel appearing for the petitioner submits that

C.C.No.236 of 2024 was taken cognizance by the Magistrate at earlier point of

time, if so, the examination of witness must commence from C.C.No.236 of

2024 and then followed by C.C.No.371 of 2024. If any application is filed for

dispense the personal appearance of the petitioner, same may be considered

based on the facts and circumstances of the case.

                                                                                         28.10.2024

                Index                  : Yes/No.
                Neutral Citation       : Yes/No.
                bsm

                To,

1.The Judicial Magistrate No.I, Attur, Salem.

2. The Sub Inspector of Police, Ethappur Police Station, Salem District.

3.The Public Prosecutor, High Court of Madras, Chennai.

https://www.mhc.tn.gov.in/judis

Dr.G.JAYACHANDRAN,J.

bsm

28.10.2024

https://www.mhc.tn.gov.in/judis